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ELRCPartially AllowedCause No 638 of 2015· [2019] KEELRC 1143 (KLR)

Joseph Mutuura Mberia v Council, Jomo Kenyatta University of Agriculture & Technology [2019] KEELRC 1143 (KLR)

Employment and Labour Relations Court
5 July 2019
2,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed JKUAT lecturer 12 months' salary because his employer dismissed him for reasons he was never told.

What this practically means

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Executive summary

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The Claimant, formerly Chairman of the Department of Biological Science at JKUAT and Secretary General of the UASU-JKUAT chapter, sued challenging his summary dismissal on 16 May 2014 following suspension on 6 September 2013 for alleged 'inimical conduct'. He sought reinstatement, damages for breach of constitutional rights and discrimination of Kshs.10,000,000, half pay for suspension, and in the alternative compensation of 12 months' salary, notice pay and terminal dues. The Respondent contended the Claimant held a personal vendetta, that the charge sheet was elaborate, and that delays were caused by his own litigation. The court framed two issues: whether the termination was lawful and whether the Claimant was entitled to the remedies sought. On due process, the court found the Claimant was the author of his own misfortune as his own suit caused the suspension to exceed 90 days under the CBA. However, applying sections 41(1) and 43(1) of the Employment Act, the court held the termination unfair because the reasons for dismissal differed from those in the suspension letter and charge sheet, and RW1 admitted the Claimant was dismissed for lack of discipline and commitment, allegations he had no opportunity to respond to. The discrimination claim failed for lack of sufficient evidence. Reinstatement was refused as more than three years had elapsed and the working relationship had broken down; notice pay, half pay and service pay claims were abandoned or unavailable. The court awarded maximum compensation of 12 months' gross salary (Kshs.2,160,336), plus costs of the suit and interest on the decretal sum from the date of judgment.

Key legal issues

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01

Whether the suspension and disciplinary process accorded with due process under the CBA and Employment Act

Holding

The delay beyond the 90-day CBA limit was occasioned by the Claimant's own litigation restraining the suspension, so he was the author of his own misfortune; the charge of inimical conduct was understandable from the suspension letter.

Reasoning

The Claimant sued to restrain his suspension, which caused the delay; a letter from the UASU-JKUAT Chapter confirmed the pending case caused it. The court found the 'inimical conduct' charge equated to gross misconduct and was explained, so the Claimant could not claim he did not understand it.

p. 2
02

Whether the employer proved valid reasons for termination under sections 41 and 43 of the Employment Act

Holding

The termination was unfair because the reasons for dismissal differed from those in the suspension letter and charge sheet, and the Claimant had no opportunity to respond to the actual reason.

Reasoning

Section 41(1) requires an employer to explain reasons for termination; section 43(1) requires the employer to prove them. RW1 admitted the dismissal was for lack of discipline and commitment, allegations different from those the Claimant responded to, including an unresponded breach-of-integrity charge in the charge sheet.

p. 3
03

Whether the Claimant was discriminated against as a union official

Holding

The claim failed for lack of sufficient evidence; the Claimant was treated the same as his deputy, who was reinstated only because he moved to court promptly.

Reasoning

The Claimant did not state specific instances constituting discrimination. His treatment was the same as Naphtali Muga Rugara's except that Rugara moved to court immediately and was reinstated. The Respondent did not hinder union activities, and access orders had been obtained when access was denied.

p. 3

Legal principles established

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  • Where the reasons for dismissal differ from the reasons indicated in the suspension letter and charge sheet, and the employee had no opportunity to respond to the actual reason, the employer has not proved valid reasons under section 43(1) and the termination is unfair.
  • A claim of discrimination or breach of constitutional rights must be pleaded with specificity, identifying the instances of violation and the constitutional provisions infringed.

Court orders

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  1. 1.Compensation for loss of employment of 12 months' gross salary, Kshs.2,160,336.00 (Kshs.180,028.00 x 12 months)
  2. 2.The respondent shall pay the claimant's costs of the suit
  3. 3.Interest shall accrue on the decretal sum from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 43(1)

Cases cited (3)

  • Anarita Karimi Njeru vs. The Republic
    [1976 – 1980] KLR 1272
  • Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Joseph Mutuura Mberia & Another –V- The Cabinet Secretary Education, JKUAT & 2 Others
    Petition No. 33 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim for unfair termination of employment under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Mutuura Mberia v Council, Jomo Kenyatta University of Agriculture & Technology [2019] KEELRC 1143 (KLR)", Case Analysis (2019). Cause No 638 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1143/eng@2019-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.